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State v. Ward (2/9/01) ap-1721
State v. Ward (2/9/01) ap-1721
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-7546
Petitioner, ) Trial Court No. 3AN-S99-0659 CR
)
v. ) O P I N I O N
)
WALTER LEE WARD, )
)
Respondent. ) [No. 1721 - February 9, 2001]
)
Appeal from the District Court, Third Judicial
District, Anchorage, Gregory J. Motyka, Judge.
Appearances: William H. Hawley, Jr., Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Petitioner. Frederick T. Slone, Kasmar & Slone, Anchorage, for
Respondent.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
Walter Lee Ward was charged with felony driving while
intoxicated (DWI). [Fn. 1] The district court granted Ward's motion
to suppress his breath test results. The court ruled that the state
had interfered with Ward's rights based on evidence that the
police had affirmatively told Ward that his blood sample would be
"stored as evidence" until Ward or his attorney requested that it
be analyzed, and that the police had then failed to ensure that the
blood sample was preserved.
The state petitioned us to review this ruling, and we
granted review. For the reasons set forth below, we vacate the
district court's decision and we remand Ward's case to that court
for further consideration.
I. Facts and Proceedings
On January 22, 1999, Anchorage Police Officer Nix arrested
Ward for DWI. Ward was brought to a police substation and was given
a breath test. As part of the DWI processing, Ward was told that
he could have an independent test, and if he so desired, the police
would arrange to have Ward's blood drawn at government expense for
that purpose. Officer Nix read Ward a "Notice of Right To
Independent Chemical Test," which stated that "[t]he blood will be
stored as evidence until you or your attorney make arrangements for
its analysis." When Ward indicated that he wanted a blood sample
drawn at government expense, he was taken to Alaska Regional
Hospital, where a sample of his blood was drawn.
On March 16, 1999, Ward was indicted for felony DWI. One
week later, Ward retained attorney Frederick T. Slone to defend him.
Ward's trial was originally scheduled for June 28, 1999, but the
trial was later continued until August 9, 1999. During the time
after his arrest and before his trial originally was supposed to
start, neither the state nor Ward's attorney arranged to have Ward's
blood analyzed.
On June 29, 1999, Ward's attorney, Slone, contacted Alaska
Regional Hospital and asked them to analyze Ward's blood sample for
alcohol content. Hospital personnel replied that they had destroyed
Ward's blood sample on June 5, 1999, in accordance with their
policy of destroying such samples if no request to analyze them is
received within three months.
Almost three months later, on September 22, 1999, Ward
moved to suppress his breath test result because his blood sample
had been destroyed by Alaska Regional Hospital. At an evidentiary
hearing held on October 15, 1999, Steven Keith, a chemical
supervisor at Alaska Regional Hospital, acknowledged that blood can
be preserved for more than twelve months. However, Keith reiterated
the hospital's policy of destroying blood samples after three months
unless a party contacts the hospital. Keith noted that, despite the
three-month policy, Ward's blood sample was actually held for almost
four and one-half months before it was destroyed.
At the same hearing, Ward presented evidence that he had
relied on the police officer's statement that the blood would be
preserved until someone asked to test it and that, based on this
statement, he believed that his blood sample would be stored until
after trial.
Based on this evidence, District Court Judge Gregory J.
Motyka suppressed the breath test results. Judge Motyka found that
Ward was misled when the police told him that his blood would be
stored as evidence until he or his attorney made arrangements for
its analysis when, in fact, the hospital's policy of throwing out
blood samples after three months meant that Ward had only a limited
period of time within which to request analysis of his blood sample.
Judge Motyka concluded that Ward and his attorney could reasonably
infer that the blood sample would be kept at least until the case
was resolved. Judge Motyka also found no evidence to indicate that
Ward's failure to request the analysis until late June 1999 was a
tactical ploy.
Based on this evidence, Judge Motyka ruled that, if the
police chose to have Alaska Regional Hospital draw the blood samples
from DWI arrestees, the state either was obliged to arrange for
preservation of the blood samples until a defendant's trial or, at
the very least, was obliged to notify defendants of the hospital's
policy that blood samples would be kept no longer than ninety days.
Because the state had failed to do either, Judge Motyka ruled that
the state had improperly interfered with Ward's rights. He
therefore granted Ward's motion to suppress the breath test results.
II. Discussion
A. Is the state responsible for the destruction of Ward's
blood sample?
Judge Motyka recognized that the police had taken Ward to
the hospital for the drawing of a blood sample. But he nevertheless
concluded that the state had violated Ward's rights because the
police told Ward that his blood sample would be stored as evidence
until Ward or his attorney arranged for its analysis, and failed to
ensure that the blood sample was retained and notify Ward that he
had a limited period of time in which to request analysis of the
sample.
In reaching this conclusion, Judge Motyka relied
particularly on the Alaska Supreme Court's decision in Thorne v.
Department of Public Safety. [Fn. 2] In Thorne, the police
destroyed a video tape of the defendant performing field sobriety
tests. The videotape was destroyed after the criminal charges
against the defendant were resolved, but before his drivers' license
revocation hearing. The supreme court held that the defendant's due
process rights were violated when the videotape was destroyed prior
to the license revocation hearing. [Fn. 3] The court found that
"where the burden of preservation is so minimal, and the evidence
is of even slight potential relevance, the state bears a heavy
burden in justifying its destruction." [Fn. 4] The court further
noted that "[e]ven if preserving videotapes of post-arrest field
sobriety tests for use at administrative hearings imposes an
incremental burden on the state, we believe that an accused's due
process rights outweigh this consideration." [Fn. 5]
The state claims that Thorne is distinguishable from
Ward's case because Thorne involved the government's destruction of
a videotape that the government created, owned, and possessed. In
Ward's case, the state points out, the blood sample did not belong
to the government, it was drawn and retained by a private hospital,
and the government had nothing to do with its destruction. Relying
on Bradley v. State, [Fn. 6] the state argues that it should not be
held responsible for the hospital's actions.
In Bradley we rejected the argument that the state has a
positive duty to preserve a DWI defendant's blood sample that it
neither requested nor possessed. [Fn. 7] But Ward's case presents
a different question from Bradley because Ward's blood sample was
not drawn by the hospital for medical reasons. Instead, the
sampling was performed at Ward's request pursuant to his right to
preserve this potentially exculpatory evidence. [Fn. 8]
The state argues that due process requires only that DWI
defendants have "a reasonable opportunity to challenge" the state's
breath test, [Fn. 9] and that four and a half months is a reasonable
opportunity. But the state's argument misses the point. It may be
that a hospital policy of holding blood samples for ninety days is
consistent with the defendant's due process rights. But in Ward's
case, a police officer affirmatively told him that there was no time
limit no need to act promptly. Having made this representation,
the state was obliged to honor it. That is, the state was obliged
to make an effort to ensure that Ward's blood sample was preserved
as promised.
B. What is the appropriate remedy?
When the state destroys or loses evidence in its
possession, the trial court is not automatically required to impose
sanctions. [Fn. 10] Rather, the court must "carefully examine the
circumstances surrounding the state's violation of its duty of
preservation." [Fn. 11] Specifically, the court must consider the
degree of culpability on the part of the state, the importance of
the lost evidence, the prejudice suffered by the defendant, and the
evidence of guilt adduced at the hearing or trial. [Fn. 12] In
Thorne, the supreme court considered these factors and determined
that the appropriate sanction for the state's premature destruction
of the videotape of the defendant's field sobriety tests was to
remand with directions to the hearing officer to presume that the
videotape would have been favorable to the defendant. [Fn. 13]
It is well-established that when evidence is destroyed in
bad faith or in "a deliberate attempt to avoid production, sanctions
will normally follow." [Fn. 14] But when evidence is "lost or
destroyed in good faith, the imposition of the sanctions will depend
upon the degree to which the defendant has been prejudiced." [Fn.
15] As the supreme court noted in Putnam:
In cases where the defendant cannot reasonably
be said to have been prejudiced by the state's good faith failure
to preserve the evidence, sanctions will generally not be
appropriate. Where, however, the defendant has suffered prejudice,
sanctions will generally be warranted. Just what sanction is
appropriate in a given case is best left to the sound discretion of
the trial court. [Fn. 16]
In Ward's case, there is no evidence that the state
intentionally destroyed Ward's blood sample. At most, the evidence
suggests that the state was negligent in not telling Ward that
there was a need to act promptly to preserve and test the sample.
Thus, the sanction to be imposed in Ward's case, if any, will depend
in large part on the degree of prejudice suffered by Ward.
It further appears that, if a sanction is to be imposed,
Thorne establishes the presumption that the appropriate sanction is
a jury instruction modeled after the relief granted in Thorne an
instruction telling the jury to assume that the missing evidence
would have been favorable to Ward. [Fn. 17]
We therefore VACATE Judge Motyka's decision and REMAND
this case to the district court for reconsideration of its decision
in light of this opinion.
We do not retain jurisdiction of this case.
FOOTNOTES
Footnote 1:
AS 28.35.030(a), (n).
Footnote 2:
774 P.2d 1326 (Alaska 1989).
Footnote 3:
See id. at 1330.
Footnote 4:
Id. at 1331 (footnotes omitted).
Footnote 5:
Id.
Footnote 6:
662 P.2d 993 (Alaska App. 1983).
Footnote 7:
See Bradley, 662 P.2d at 995.
Footnote 8:
See Snyder v. State, 930 P.2d 1274, 1277 (Alaska 1996) (It is
a fundamental tenet of due process that a person accused of a crime
has a right to attempt to obtain exculpatory evidence.).
Footnote 9:
See Crim v. Anchorage, 903 P.2d 586, 587-88 (Alaska App. 1995).
Footnote 10:
See Putnam v. State, 629 P.2d 35, 43 (Alaska 1980), rejected
on other grounds in Stephan v. State, 711 P.2d 1156, 1163 (Alaska
1985); see also Abdulbaqui v. State, 728 P.2d 1211, 1217-18 (Alaska
App. 1986).
Footnote 11:
Putnam, 629 P.2d at 43 (footnote omitted).
Footnote 12:
See Thorne, 774 P.2d at 1331; Putnam, 629 P.2d at 44.
Footnote 13:
See Thorne, 774 P.2d at 1331.
Footnote 14:
Putnam, 629 P.2d at 43; see also Abdulbaqui, 728 P.2d at 1218.
Footnote 15:
Putnam, 629 P.2d at 43 (footnote omitted).
Footnote 16:
Id. at 43 (citations omitted).
Footnote 17:
See Thorne, 774 P.2d at 1331-32.
